Physiotherapist banned from treating women

After four independent complaints were made by females regarding inappropriate treatment they received from Mr Ashley Smith, physiotherapist, the Physiotherapy Board of Australia (Board) determined to ban Mr Smith from treating women.

Mr Smith appealed the Board’s decision to the South Australian Civil and Administrative Tribunal (SACAT), who ultimately determined in Smith v Physiotherapy Board of Australia [2020] SACAT 67 (the Decision) to uphold the Board’s initial determination.

The Decision demonstrated the importance for individuals to know their rights and to take action if they are subject to behaviour that they feel is unprofessional, unsafe or unwelcome.

The Health National Law

The Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law) forms part of a national legislative scheme for the regulation of health practitioners.

The conduct of physiotherapists is regulated by the National Law. The National Law sets out a mandatory notification process for ‘notifiable conduct’, which includes, among other things:

• engaging in sexual misconduct in connection with the practice of the practitioner's profession; or
• placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

A National Board, such as the Board, may take ‘immediate action’ (such as suspending or imposing a condition on a health practitioner’s registration) in relation to a registered health practitioner if the National Board reasonably believes, among other things, that “because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons”.

Following two notifications made to the Australian Health Practitioner Regulation Agency (AHPRA) in 2020 against Mr Ashley Smith, physiotherapist and franchisee of a ‘Back in Motion’ physiotherapy practice at Prospect in respect of his alleged conduct, the Board commenced an investigation and determined to take ‘immediate action’ pursuant to the National Law by imposing a restriction on Mr Smith’s registration, in the form of banning him from treating any female patients.

Notifications about Mr Smith’s conduct

The two notifications made against Mr Smith were considered by the Board in determining to take immediate action, in addition to two previous notifications made by patients of Mr Smith in 2017 and 2018 regarding his alleged conduct. In summary, the four notifications alleged that:

• Mr Smith deliberately put his hands under Patient A’s breasts (who was a recent mother who had been breastfeeding) as she was descending onto the treatment table;
• Mr Smith engaged in flirtatious behaviour towards Patient B, unclipped her bra without first asking, stroked and caressed her waist, stated to Patient B words to the effect “I can make it a pleasurable massage if you want” and wiped body oil off Patient B’s body with a tissue for an excessive period of time;
• During Mr Smith’s consultation of Patient C in November 2016, Mr Smith asked her to remove her top, did not provide a gown despite Patient C requesting such and did not leave the room for her to undress; and
• Mr Smith sexually harassed Patient D during her consultation by reaching around Patient D’s waist from behind, unbuttoning and unzipping her shorts without her permission, asking Patient D about her boyfriend, rolling down the back of Patient D’s shorts and taking a photograph of the strapping on Patient D’s back without informing her in advance or seeking her permission.

SACAT's Decision

SACAT reinforced in the Decision that its role was not to make findings on the balance of probabilities in respect of Mr Smith’s conduct, including whether it constituted sexual harassment or not. The role of the SACAT in the Decision was to determine whether the Board had reasonable belief to take immediate action pursuant to the National Law, because of the conduct, performance or health of Mr Smith, he posed a serious risk to persons.

The SACAT ultimately determined that the Board did have reasonable belief on the basis that the combined effect of all of the evidence before the SACAT that Mr Smith posed a “serious risk to persons, and that it is necessary to take immediate action to protect public health or safety”. Although Mr Smith submitted that the sanction imposed on his registration, being his inability to treat female patients, would have a devastating financial impact on him (as the contractual relationship between his practice and the franchisor would likely terminate), SACAT did not consider that factor to be relevant, given that the impact would be caused by the actions of the franchisor.

Sexual Harassment Legislation

While the SACAT did not (and was not required) to make any findings in respect of sexual harassment, we do note that section 28A of the Sex Discrimination Act 1984 (Cth) (the SD Act) defines that a person is sexually harassed if:

• a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• a person engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

In this Decision, the National Law specifically contemplates instances of sexual misconduct in connection with the practice of a health practitioner’s profession to constitute a notifiable incident.

Importantly, the SD Act provides an avenue for an individual (either employee or customer) to make a complaint against another person if they have been sexually harassed.

Take Home Messages

From an industrial perspective, it is important that employers create a workplace whereby employees feel safe to make complaints about sexual harassment if they arise. We note that an employer could also be subject to a complaint if its employee has sexually harassed another person in the workplace. As such, an employer should have a robust policy in place for dealing with such complaints. Had Patients A to D not made complaints through appropriate avenues, the Decision would not have been dealt with in the manner it has to date.

For more information please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.